Penco Enterprises, Inc.

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Penco Enterprises, Inc., Penco of Ohio, and Acoustical Contracting and Supply Corp . and Donald D. Pereces. Case 8-CA-6782 February 26, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 25, 1974, Administrative Law Judge Irving M. Herman issued the attached Supplemental Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the Administrative Law Judge's Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and briefs and has decided to,affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that discri- minatee Michael Mooney had received a valid offer of reinstatement which he rejected by failing to communicate with the Respondent. He therefore further found that Mooney's right to backpay terminated on March 13, 1972, the date that Mooney received the letter. We disagree with the Administrative Law Judge's conclusion and, for the reasons discussed below, we find that the letter received by Mooney did not constitute an adequate offer of reinstatement. As credited by the Administrative Law Judge, the following letter, dated March 10, 1972 (a Friday), was sent to Mooney by Respondent: Michael Mooney 9411 Beech Ave. Cleveland, Ohio 44144 March 10, 1972 CERTIFIED MAIL RETURN RECEIPT SUBJECT: Layoff Recall Request Your job with our company is now available. We request you report ready for work at 7:00 a.m. on Tuesday March 14, 1972. 1 203 NLRB 881 (1973) In the event you do not wish to return notify this office by phone, or mail on Monday March 13, 1972, or we must remove your name from the recall list. A stamped addressed envelope is enclosed for your use if required. Cordially, Penco of Ohio 4832 Ridge Road Cleveland, Ohio 44144 (216) 749-5151 Mooney received the letter on March 13 but did not communicate with Respondent. Based upon his failure to respond, the Administrative Law Judge found that Mooney had rejected the offer of reinstatement. In so finding, the Administrative Law Judge rejected the General Counsel's contentions that Mooney did not have enough time to reply and that such a conclusion was supported by our decision in Southern Household Products Company, Inc.' In Southern Household, the respondent therein sent a letter dated April? offering reinstatement on April 9 (a Wednesday). The letter also provided that the discriminatee could advise the respondent as to his position concerning reinstatement on April 9 or not later than April 18. We found that the April 9 reporting date provided insufficient notice without the April 18 "advise date." Backpay was therefore tolled as of April 18. The Administrative Law Judge herein concluded that Southern Household would indicate that while the March 14 reporting date given Mooney, standing alone, might have provided insufficient notice, this defect was cured by the opportunity afforded to notify Respondent by March 13 of a desire for an alternative reporting date. We disagree. First, it is questionable whether Respondent's letter to Mooney contained language which provided him an opportunity to inform Respondent of an alternate reporting date. While the third paragraph of the letter may possibly be interpreted in such a manner, it is ambiguous and any uncertainty as to the meaning of the letter must be resolved against Respondent, who prepared the letter. More impor- tantly, however, it is clear that no matter what interpretation is given to the third paragraph, Respondent's letter provided Mooney only 1 day at the most to decide whether to accept the offer of reinstatement. It is also clear that a discriminatee, upon receiving an offer of reinstatement, has a 216 NLRB No. 125 PENCO ENTERPRISES, INC. fundamental right to a reasonable time to consider whether to return.2 While we do not attempt to prescribe what is reasonable in every circumstance, we do not view the time allotted herein as reasonable. Mooney would have had to inform Respondent of his intentions the same day he received the letter or else report for work on the following morning. We find this totally inadequate. Thus, contrary to the conclusion of the Administrative Law Judge, we find that Respondent did not make a valid offer of reinstatement to Mooney.3 As we have found that Michael Mooney was not given an adequate offer of reinstatement we also find that he was entitled to backpay through the second quarter of 1973, since which time it is admitted that net quarterly earnings exceeded gross quarterly backpay. We shall adjust his backpay award accord- ingly. We also find that Respondent remains under an obligation to offer reinstatement to Mooney in accordance with our previous order in this case. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Penco Enterprises, Inc., Penco of Ohio, and Acousti- cal Contracting and Supply Corp., Cleveland, Ohio, its officers, agents, successors, and assigns, shall make a valid offer of reinstatement to employee Michael Mooney and make him whole by payments of $4,872.31, plus interest, less any deductions required by state and Federal law, plus any backpay that may accrue from the date of the backpay Specification until a valid offer of reinstatement is made to Mooney. 2 Ibid. 3 As we find that Respondent's offer of reinstatement to Mooney was in any event inadequate , we do not reach the question of whether the Administrative Law Judge should have allowed litigation of the reinstate- ment offer. SUPPLEMENTAL DECISION IRVING M. HERMAN, Administrative Law Judge: This supplemental proceeding to determine the amount of backpay due Michael Mooney, who had previously been found to have been discriminatorily laid off on November 23, 1971,1 was heard before me on March 28, 1974, at Cleveland, Ohio, on the backpay specification dated February 27, 1974, as amended at the hearing, and Respondent's answer, as amended. The General Counsel claims as net backpay a total of $4,872.312 due as of the date of the specification, plus 1 201 NLRB29(1973). 2 Reduced from $5,297.20 at the hearing 3 Reduced from $1,383.05 at the hearing. 4 Reduced from 542.375 at the hearing. 5 Corrections to the transcript of testimony are hereby ordered and 735 interest to the date of payment less any tax withholding required by law. This amount represents $527.62 for the fourth quarter of 1971 (234.5 hours at $2.25), $958.163 for the first quarter of 1972 (375.75 hours4 at $2.55), and the balance through the second quarter of 1973, since which time it is admitted that Mooney's net quarterly earnings exceeded any gross quarterly backpay. Respondent con- cedes the claim for the fourth quarter of 1971; it also concedes the backpay due for the period through March 13, 1972, but at the hourly rate of $2.25 rather than $2.55, thus contending that the total due is $1,196.43. The contention that the obligation terminated March 13, 1972, rests on a written offer of reinstatement. General Counsel argues that the matter of the offer was litigated at the unfair labor practice stage of the case and may not be relitigated here, and that in any event the offer was inadequate. Upon the entire record,5 including my observation of the witnesses, and upon the briefs filed on behalf of the General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE OFFER OF REINSTATEMENT Respondent introduced into evidence what Mrs. Jean Wright claimed was a carbon copy of the following letter: Michael Mooney 9411 Beech Ave. Cleveland, Ohio 44144 March 10, 1972 CERTIFIED MAIL RETURN RECEIPT SUBJECT: Layoff Recall Request Your job with our company is now available. We request you report ready for work at 7:00 a.m. on Tuesday March 14, 1972. In the event you do not wish to return notify this office by phone, or mail on Monday March 13, 1972, or we must remove your name from the recall list. A stamped addressed envelope, is enclosed for your use if required. Cordially, Penco of Ohio 4832 Ridge Road Cleveland, Ohio 44144 (216) 749-5151 granted on the basis of General Counsel 's motion of April 15, with such additional items based on my trial notes as will aid understanding; the General Counsel's motion was unopposed except for the amendments at p. 9, 1. 12, and p. 98, 1. 10, and logic as well as my notes support both those amendments. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Wright, board chairman and secretary-treasurer of Penco Enterprises, Inc., and president of Penco of Ohio,e testified that Respondent was a family enterprise, not large,. and that besides her management duties she frequently performed various clerical functions, including typing, when the five clerical employees serving the entire enterprise were overburdened; and that she typed the above letter as well as one to George Francis, another discriminatee, which was identical except for name and address. Francis received the letter addressed to him. Mooney testified that he drove to the post office on Monday, March 13, and signed for a letter identical to the above except that it bore Francis's name although he was "pretty sure" it had Mooney's address and the envelope "[d]efinitely" was addressed to Mooney at Mooney's address. Because the letter "had no bearing on me whatsoever. It wasn't my name on it. Why should I reply to a letter that didn't concern me?",7 he neither phoned Respondent for an explanation of the discrepancy nor went to the plant which was located about a quarter of a mile away. Instead he brought the letter home where, according to his mother, she and he joked about the way the letter was addressed. He tried to telephone Francis whom he had grown up with, who lived within a block or two, and whom he saw frequently, to tell him about the letter, but there was no answer. He made no further attempt to call Francis but saw him around the following weekend and mentioned the incident.8 Francis informed him that he had received his own letter but was not accepting the offer because he had secured other employment. Mooney still made no attempt to communicate with Respondent regarding the letter because it "didn't concern [him]." H. THE APPLICABLE WAGE RATE AFTER 1971 Immediately prior to the close of 1971, only three production employees were paid less than $2.55 an hour, one of these (Palmer) receiving $2.50, another (Davis) $2.25, and the third (Lynce) $2.20. On December 30 each of said employees received an increase to $2.55. Palmer had been hired October 20, 1971, Davis on June 3, and Lynce on August 27. Mooney's date of hire was July 22, 1971. He started at $2 an hour and was raised to $2.25 in the pay period ending September 7. Although Glenn Wright, president of Penco Enterprises, Inc., and Acoustical Contracting, and general manager of Penco of Ohio, conceded that Mooney would have received a raise on December 30,9 "most likely" 5 percent, he testified that Mooney would not have been raised to 6 In addition to numerous other offices she held in the corporate complex of which the three captioned companies constitute the Respondent herein r Again he testified, "As far as I was concerned this didn't deal with me directly. It didn't have my name anywhere on the letter, just the envelope " $2.55 because the employees receiving such raises as a result of the year-end review had "stepped" from the "job position" of general laborer up "to the classification of batch maker," while Mooney was only a general laborer who had not shown the ability to accurately weigh out the ingredients needed to produce Respondent's products. This assessment of Mooney's ability rested not on Wright's own observation of Mooney's work but on the conclusionary opinion of Respondent's operations manager who Was not called as a witness . Wright's direct testimony in this respect was as follows: Q. As the person charged with the responsibility to make wage changes, did you receive reports concerning the abilities of the people in the plant? A. We did. Normally 90, days after a person was hired, we considered the first 90 days as approximately a probation period. After that we would normally on a six and then a 12 month period go through - I would go through with the operations manager and review each of the personnel, yes. Q. Did you give automatic raises, did the company give automatic raises? A. You might say that in some cases you had a small seniority increase , on a yearly rate ; but certainly you never gave just an automatic increase within a 12- month period. These increases is what I am saying would be given only if a man stepped from one job position up to another. Q. Is a job step from laborer to batch maker, is that a step up? A. Very definitely. Q. And did that have an effect upon the raises given to Palmer, Lynce, Davis? A. Yes, it would. Q. In your position of operating the plant and seeing people function, would Mr. Mooney have been given a step up to batch maker from laborer? A. I can't give you my opinion on that. I can give you our operations manager's opinion which was passed along to me. Q. What reports did you receive? A. The report was that he was unable at that time to step up to a batch maker. Q. Were there specific reasons given for this? A. I don't know how to say it, just that he didn't have the ability at that time. He had not shown the ability to be able to weigh out accurately and properly. Q. Had Mr. Mooney been employed by the Company in December or subsequent to December of 1971, would he have been promoted to batch maker? A. Not at that time, no. Not unless he had progressed considerably from that period in November through December. On cross-examination, however, when asked whether there 9 Francis could not recall whether they discussed the matter in person or by telephone. 9 The grudging admission in Respondent 's brief that Mooney "might have received" a raise at that time is to be contrasted with Wright's testimony that he "[v ]cry definitely" would have received one PENCO ENTERPRISES, INC. 737 were company records reflecting "the change in job position," Wright's testimony was: A. Well, I don't think that it would be a change in job position. It is a job that they grow into that they would be doing as on the job training . Then it was turned over to them fully and the increase was given to them. Q. It was mainly a change in function as opposed to a change in job title. They were doing different duties that warranted an increase rather than a change in job title. A. They were to take over full supervision of their own batching without assistance. Q. Were they called laborers, or did they actually have the title changed to batch maker? A. Everyone would have called them a batch maker. Q. Would they have regarded themselves as batch makers? A. Yes. Q. Were they told that their position was batch maker? A. I am sure that when they received the increase they would have.io When the General Counsel amiounced he had no further questions, Wright's testimony continued: JUDGE HERMAN : When those three men were given batch makers wages, did you have anybody then on your payroll who was regarded as a general laborer? THE WITNESS: Yes, we would have had. We always had a minimum of two. I can't tell you what their names are. MR. BAUDERS : I am sorry, I can't hear. THE WITNESS: I say that we normally have on our payroll at least two that you will classify as general labor. I can't tell you at this time who it would have been. If I can see a list of the employees at that time, I could probably say who it was. JUDGE HERMAN : I thought there was a stipulation that - MR. BITTEL : There was a stipulation. JUDGE HERMAN: - that everybody, all production people, were getting the minimum of $2.55 at that point. MR. BITTEL : That is the stipulation, and that is what our records show, Your Honor. JUDGE HERMAN : So you mean there were two people who were regarded as general laborers who were getting $2.55? THE WITNESS: If they were coming along, that is possible. At that time, these people had just been elevated to this position; so as ydii went along if we would have added personnel, we would have added more laborers at the prevailing rate of $2.00 or $2.25 per hour. On a resumption of cross-examination, Wright testified that he was "certain , that [he] could name several" employees hired since ] 971 or 1972 at less than $2.50 an hour. The sole employee he named in this connection was Roger Spears whom he claimed to have started at $2 or $2.25, but Spears' payroll record showed his starting rate at $2.50. The parties stipulated that in calendar 1972 and 1973 the lowest rate paid was $2.50. And company records showed that 30-odd production employees were hired since September 1971, none at a rate less than $2.50. III. THE COURT PROCEEDING The petition for enforcement herein was withdrawn pursuant to the Board's motion of July 2, 1973, stating in relevant part: 2. The Company does not wish to challenge the Board's findings and conclusions herein except those which relate to the Company's contentions that the Company's letter of March 10, 1972, to discriminatee Michael Mooney constituted a sufficient offer of reinstatement and that the sale of the assets and cessation of business of Acoustical Contracting & Supply Corp. on of about March 1, 1972, terminated the backpay rights of discriminatee Donald Pereces. With respect to the last two matters, the Company wishes to preserve its right to judicial review of the Board's findings and conclusions made in the instant proceeding or in any subsequent supplemental pro- ceeding. 3. Accordingly, as shown by the Stipulation attach- ed hereto, the parties have agreed that the Board will waive its right to an enforcement decree and will move to dismiss the instant proceeding in return for respon- dent's waiver of its right to challenge in any future proceeding in this Court the propriety of the Board's unfair labor practice or remedial findings and conclu- sions herein, except as described in paragraph 2 above." 10 Although Lynce testified in the unfair labor practice hearing that he was a batchmaker, Palmer and Davis classed themselves as general laborers. Francis and Mooney both testified in the instant proceeding that they never knew of anyone being called a batchmaker. ii The stipulation referred to in the motion is as follows: The undersigned parties hereby stipulate and agree that: 1. The National Labor Relations Board will move the Court to dismiss the Board's pending application for enforcement of its decision and order in Board Case No. 8-CA-6782. 2. The respondent Company , in consideration of the Board foregoing its right to obtain an enforcement decree , hereby waives its right to contest in any future proceeding in this Court any of the Board's findings and conclusions with respect to the unfair labor practices alleged and found in Board Case No. 8-CA-6782 ; except that respondent does not waive any objections or defense to the Board's findings that the Company's letter of March 10, 1972, to discnminatee Michael Mooney did not constitute a sufficient offer of reinstatement, or with respect to the Company's contention that the sale of the assets of Acoustical Contracting & Supply Corp. and a cessation of that company's business on or about March 1 , 1972, terminated the backpay rights of discnminatee Donald Pereces. 3. Accordingly, if respondent seeks judicial review of a subsequent Board decision awarding backpay to the discnminatees in Board Case No. 8-CA-6782, it is understood that respondent will be precluded in such proceeding from challenging the propriety of the unfair labor (Continued) 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Analysis 1. Litigability of the sufficiency of the recall letter of March 19, 1972 At the hearing, I reserved decision on the General Counsel's motion to strike so much of Respondent's answer to the specification as "relates to the defense that the letter sent to Mr. Mooney was a proper offer of reinstatement," and took evidence from both sides relating to this defense. The motion was based on the contention that this matter had been fully litigated in the unfair labor practice proceeding. I find that contention without merit and accordingly deny the motion. The entire testimony concerning this matter in the unfair labor practice hearing followed the conclusion of Mooney's cross-examination, and was as follows: TRIAL EXAMINER: Were you ever called back? THE WITNESS : I was called back approximately a month ago. The envelope was addressed to me but the contents inside were addressed to George Francis. It was a letter concerning that the layoff was over and you could return to work if you wanted. TRIAL EXAMINER : But it wasn't to you? THE WITNESS: The envelope was to me, but the contents were to George Francis. TRIAL EXAMINER: Didn't you ever report back? THE WITNESS: No. : w * s Q. In March of 1972 you received a certified letter with a return receipt requested which receipt you signed? A. Yes, sir. Q. That letter was from Penco of Ohio? A. Yes. Q. And there was a stamped self-addressed enve- lope in that letter? A. No. Q. There were instructions in that letter that you should telephone the office, if you did not want to come back on the 13th of March, 1972? A. It was stated that either, if you didn't call or return, it would be taken for granted that you didn't want to return, and they would find someone to fill your spot, but generally the letter didn't concern me. It wasn't addressed to me personally. The envelope was, but the contents weren't. Q. What did you do with the contents? A. I think I still have them at home. Q. Who did you say they were addressed to? A. The envelope was addressed to me . The con- tents were addressed to George Francis. Q. Did you call Mr. Francis and tell him that it looks like there might have been some sort of mixup? A. I called, but there was no answer. Q. You never talked to him about that? A. No. Q. Did you ever call the Company and ask them what about this letter you received? A. No. Q. You didn't want to come back to work there? A. Not especially. Q. You found other employment? A. No. Q. You are not working now? A. No. Q. You are receiving unemployment from the State of Ohio? A. No. Q. Are you actively seeking employment? A. Yes. As General Counsel urges, the Board does not permit relitigation in a backpay proceeding of issues raised and determined at the earlier stage of the case. But this principle traditionally concerns matters fairly litigable in the initial proceeding, i.e., "relating to whether the discriminatees were originally laid off for discriminatory or economic reasons," rather than the merits of a failure to reinstate or other factors affecting the determination of backpay due. See United States Air Conditioning Corpora- tion, 141 NLRB 1278, 1280 (1963). Brown and Root, Inc., 132 NLRB 486, 492-493 (1961), the only case relied on by the General Counsel in this connection, is not to the contrary. The defenses involved there related to integral elements of the basic unfair labor practice issue, i.e., the reinstatement rights of strikers. In short, there was no unfair labor practice in Brown and Root except that inhering in the refusal to reinstate, whereas in the instant case the reinstatement issue is essentially one of compli- ance and hence beyond the true scope of the initial proceeding. This is but a restatement of basic res judicata principles. Thus, 46 Am. Jur. 2d, Judgments §423: For a judgment to operate as res judicata and be conclusive evidence of a fact sought to be established by it, it must appear that the fact was a material or essential one, and that the judgment could not have been rendered without deciding the matter. In this respect, the general rule is that the judgment in the former action operates as an estoppel only as to matters which were necessarily involved and determined in the former action, and is not conclusive as to matters which were immaterial or unessential to the determination of the prior action, or which were not issuable therein, or which were not germane to, implied in, or essentially connected with, the actual issues in the case, or which were not necessary to uphold the judgment. This rule has been applied although such matters were presented in the earlier action and actually determined therein, and although they may affect the ultimate rights of the parties. [Footnotes omitted.] Again, in §426: For the purpose of res judicata, the significance of practice or remedial findings in the Board's original decision, except as to the issues described in paragraph 2 above. PENCO ENTERPRISES, INC. 739 what a court says that it decides is controlled by the issues which were open for decision. In other words, what is to be concluded by the adjudication is to be determined, not from the opinion, but from a consider- ation of the judgment actually rendered in reference to the issues presented for decision , and if the question was not in issue and was irrelevant to the issues presented, it is immaterial that it was "passed on" by the court. [Footnotes omitted.] The best evidence of the scope of the issues presented at the earlier hearing in this case is that specified by the General Counsel in his statement of the issues at the outset of his brief there. The only issues affecting Mooney, of the seven so listed, are: (2) Whether the Respondents on November 23, 1971, ... laid off employee Michael Mooney because of [his ] membership in, activities on behalf of, and in support for Laborers Union Local No. 860 . . . violation of Section 8(a)(1) and (3) of the Act. (5) . . . whether the Respondents . . . violated Section 8(a)(1) by threatening . . . Michael Mooney ... with loss of employment or other reprisals if [he] joined, acted on behalf of, or supported the Union. (6) . . . whether the Respondents . . . violated Section 8(a)(1) by interrogating Michael Mooney .. . regarding [his] membership in, activities on behalf of, or support for the Union. Thus, notwithstanding the boilerplate allegation of the complaint that Respondent had failed and refused to reinstate Mooney since-his layoff, the General Counsel did not regard this as one of the issues at the unfair labor practice stage of the case. Consistently, the General Counsel nowhere attempted to prove a failure to reinstate as such. His sole effort in respect to reinstatement was to prove that the recall of another employee on November 30, 1971, constituted an unlawful preference in view of Mooney's greater seniority and hence "[f ]urther evidence" of the discriminatory motivation in the layoff. He neither sought to prove nor urged by argument that the letter Mooney received on March 13, 1972, was an inadequate invitation to return, either because it had been misaddressed or for any other reason. Nor did Respondent, in cross-examining Mooney, inject this issue in any way. It was only after the conclusion of such cross-examination that the matter was introduced collaterally by a question put to Mooney by the Adminis- trative Law Judge, and the entire evidence adduced by the Judge was as follows: TRIAL EXAMINER : Were you ever called back? THE WITNESS: I was called back approximately a month ago. The envelope was addressed to me but the contents inside were addressed to George Francis. It was a letter concerning that the layoff was over and you could return to work if you wanted. TRIAL EXAMINER : But it wasn't to you? Trm WITNESS: The envelope was to me, but the contents were to George Francis. TRIAL EXAMINER: Didn't you ever report back? THE WITNESS: No. The General Counsel's redirect examination did not touch on the subject, and although Respondent's counsel then asked Mooney a few questions about the letter, he, like the General Counsel, advanced no argument on the point, and the briefs utterly ignored it. In these circumstances, I read the Administrative Law Judge's finding that Mooney and two other employees had not been recalled as something less than a definitive resolution of an issue properly before him. The context in which the finding appears tends to support this. Thus, it was immediately following his finding that "The selectivity in the layoff, and in the partial recall of some who were laid off, in disregard of Respondent's normal rule or practice of honoring seniority, was still further evidence of the discriminatory antiunion purpose," and "[i]n this connection," that the Administrative Law Judge found that Mooney, along with the two others,12 had not been recalled. And his conclusions of law nowhere dealt with a failure to recall any of the employees involved. A ruling that Respondent is now precluded from litigating the sufficiency of the March 10 letter would mean that a respondent could be forced in effect to litigate compliance before he has even been found to have committed a violation. Certainly the Board's established procedures contemplate no such anomaly. In finding the sufficiency of the March 10 letter litigable, I do not rely on Respondent's contention that General Counsel is estopped from precluding its litigation by reason of the stipulation and motion leading to the withdrawal of the Board's petition to enforce its order in the court of appeals. The reference in the motion to Respondent's preservation, in respect to this matter, of the "right to judicial review of the Board's findings and conclusions made in the instant proceeding or in any subsequent supplemental proceeding" adds nothing to the exception in the stipulation from Respondent's general waiver "in any future proceeding in this Court." What is reserved is only the right to contest in court any Board findings regarding the subject matter made either in the initial proceeding or in the backpay proceeding. This has no effect on the process of making the findings in the backpay proceeding before the Board. At the same time, contrary to the General Counsel, the stipulation in question fails to constitute any recognition by Respondent that the Board has determined the issue. The stipulation's reference to "the Board's findings that the Company's letter of March 10, 1972, to discriminatee Michael Mooney did not constitute a sufficient offer of reinstatement" was merely an acknowledgment that such a finding did appear, at least implicitly, in the decision of the Administrative Law Judge (and, by extension, in that of the Board). But it conferred no greater legal effect on the finding than that flowing from res judicata principles 12 Neither of whom was the subject of an alleged misaddressed recall letter. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which, as indicated supra, would not operate to preclude litigation of the point in the backpay proceeding. 2. Sufficiency of the March 10 letter The principal thrust of General Counsel's contention that the March 10 letter was an inadequate offer of reinstatement was that notwithstanding the envelope bore Mooney's name and address and the letter it contained also had Mooney's address, the addressee on the letter was George Francis . 13 This is alleged to have justified Moo- ney's belief - expressed variously in his testimony - that the letter "had no bearing on me whatsoever," "didn't deal with me directly," and "didn't concern me," and hence warranted his totally ignoring it and causing the backpay to run on indefinitely, secure in the knowledge that Respondent, having inadvertently misaddressed the letter, would have no reason to send another.14 I am unable to accept this position. In the first place, I do not credit the testimony that the letter bore Francis's name rather than Mooney's. The elaborate development of the argument that Respondent fabricated the document it introduced into evidence as the carbon copy of the letter it had sent Mooney overlooks what appears to me a crucial consideration . For unless Respondent had lost its senses - a suggestion quite at odds with the cunning the General Counsel ascribes to it - the argument must necessarily assume that Respondent had reason to believe that Mooney would not be able to produce the original letter. Not only is there no record basis for such assumption, but there was ample basis for the precisely opposite belief, since Mooney had testified in the unfair labor practice proceeding that he thought he still had the letter at home and it would be perfectly reasonable to expect him to have retained such a letter.15 Moreover, even assuming that the letter read as Mooney and his mother described it, he was not free, in my opinion, to treat it as cavalierly as he did . While giving full scope to the Board's "zealous[ness ] in assuring the continued efficacy" of the reinstatement remedy (Betts Baking Company, 173 NLRB 1018 ( 1968), and with due regard to the principle that shifts the burden to the employer in a backpay proceeding once the gross amount of backpay has been shown, exercise of the Board's remedial authority in this area must nevertheless "tak[e] fair account . . . of every socially desirable factor in the final judgment" (Phelps Dodge Corporation v. N.L.R.B., 313 U .S. 177, 198 13 General Counsel argues that the letter placed in evidence by Respondent is a pure fabrication created after the conclusion of the unfair labor practice hearing. He contends that this is demonstrated by Respondent's failure to produce this evidence or to testify concerning it once the issue had been raised in the earlier proceeding in the presence of Respondent's officers; the failure to contest the issue to a conclusion by seeking rehearing, filing exceptions, etc.; and the inherently incredible nature of Jean Wright's testimony that she performed all the clerical work connected with the letters to Mooney and Francis. 14 There is no contention, nor would the record support one, that the alleged error was intentional. 15 1 do not agree in any event with the contention that Respondent was bound to litigate the issue of reinstatement prematurely because of its casual introduction into the unfair labor practice proceeding or that by treating the issue to the extent that it did , it waived all further consideration of it. Nor do I agree that Mrs Wright's testimony as to this was inherently incredible or that any other basis existed for discrediting it. 16 See also Jay Company, Inc., 103 NLRB 1645, 1646-47, enfd. 227 F.2d (1941)), including "considerations governing the mitigation of damages." N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344, 346 (1953). As far back as McKesson & Robbins, Inc., 19 NLRB 778, enfd. 121 F.2d 84 (C.A.D.C., 1941), the Board took an employer's honest mistake into account in awarding backpay. Thus, where the discharge of a number of employees under an invalid closed shop contract was found to have violated the then Section 8(3), no backpay was awarded for any period prior to 5 days after the Board's Decision and Order because "the legal rights and obligations of the parties [were] in doubt and the respondent's course of action with regard to the persons discriminated against appear [ed ] to have been predicated upon an honest reliance on what it conceived to be the proper interpretation of the [contract ]." 19 NLRB at 802, supra.16 A fortiori where, as here, the mistake is one of fact and not of law. Mooney admittedly failed to communicate with Respon- dent concerning the letter simply because Francis's name was on the letter despite the facts that it contained Mooney's address and that the envelope was clearly addressed to Mooney and no one else.17 But if, upon receiving the letter, he really thought it "had no bearing on [him] whatsoever," he must have believed it was intended for Francis. Yet he was content to let Francis, his close friend, remain uninformed of his opportunity to return to work after a single futile attempt to reach him on the telephone . And his testimony that he still felt the letter "didn't concern [him]" even after discussing it with Francis within the next few days and learning that Francis had received a letter himself can scarcely be deemed less than disingenuous .18 A telephone call to his employers in this situation, or indeed an earlier visit to the plant which was only a quarter of a mile from the post office where he had driven to pick up the letter, does not seem too much to expect of a laid-off employee desirous of returning to work after a period of enforced idleness already lasting 3-1/2 months. The more likely explanation for Mooney's conduct was his admission at the unfair labor practice hearing that he did "[n]ot especially" want to return.19 I accordingly find that Mooney's failure to communicate with Respondent after receipt of the letter constituted a refusal of the offer of reinstatement. General Counsel's brief urges for the first time (in a short concluding paragraph of his argument as to the inadequacy of the letter) that even were the letter otherwise sufficient it 416, 419 (C.A. 9, 1954). 17 Significantly, referring to that letter at the unfair labor practice hearing, Mooney's immediate reply to the Administrative Law Judge's question, "Were you ever called back?" was, "I was called back approximately a month ago." (Emphasis supplied.) is I find too charitable the suggestion in the General Counsel's brief that Mooney's denial at the unfair labor practice hearing that he had ever discussed the letter with Francis resulted from his forgetting "such a minor conversation," an "understandable" lapse "in light of the fact that he never went beyond high school , is unskilled, and was only employed by Respondents as a laborer at $2.25 an hour." In all the circumstances the conversation was not minor, nor, as far as I am aware , do memory lapses necessarily vary inversely with one's educational or vocational attainments. 19 In H & H Manufacturing Company, Inc, 87 NLRB 1373, 1376-77, 1400-1 (1949), cited by General Counsel as "somewhat analogous," the employee involved (Minnie Lou Jones) received no recall message whatever despite a specific promise to send her one. PENCO ENTERPRISES, INC. 741 still did not satisfy Respondent's duty to offer reinstate- ment because it did not give Mooney enough time to reply. The entire argument in this respect is as follows: Even if it were deemed that Respondents' version of the recall letter sent Mooney was correct, it would still seem that the letter constituted an inadequate offer of reinstatement since it did not provide Mooney ade- quate time to reply. In this regard, it should be noted that the letter was dated March 10, 1972, was picked up by Mooney on March 13, 1972, and had a report-to- work date of March 14, 1972. See Southern Household Products Company, Inc. 203 NLRB 881. Although this contention appears to deserve rejection as pure afterthought, never having been mentioned prior to the brief either by General Counsel or by Mooney himself, I find it unmeritorious in any event. The lone authority cited by General Counsel, Southern Household Products Company, Inc., 203 NLRB 881 (1973), fails to support his position. In that case, an April 7 letter offered reinstate- ment as follows: If you desire such reinstatement, you are to report to work on Wednesday, April 9th, at 7:00 a.m. Should you fail to report to work as offered, or advise the Company as to your position concerning reinstatement on the 9th of April or not later than the 18 of April, it will be considered that you do not desire such reinstatement and no longer desire to work for the Company ... . The Board found "the April 9 reporting date, standing alone," to provide "too short notice without the alternative April 18 `advise date,' " and hence reversed the Adminis- trative Law Judge's holding that backpay terminated as of April 8 because the employee (Cox), who had received the letter that day, was at home and not working and therefore had no reason for not returning to work on April 9 or replying to the letter.20 In respect to another employee (Mercer), a letter was sent April 22, requesting him to report on Friday, April 25, and stating that if he did not report then or advise the employer on that date or not later than Monday, April 28, as to his position regarding reinstatement, he would no longer be considered as interested in working there . The Board found that the notice "to report on April 25, standing alone," provided too short a period, and continued Mercer's backpay to April 28. Southern Household would thus indicate that the report- ing date of March 14 given Mooney in the instant case, standing alone, might have provided insufficient notice, but that this defect was cured by the opportunity afforded to notify Respondents by March 13 of a desire for an alternative reporting date. This result would also accord with Eastern Die Company, 142 NLRB 601, enfd. 340 F.2d 607 (C.A. 1, 1965). The employer there sent the following letter on August 8: We are planning to reopen our polishing department next Monday, August 13, 1962. We would like to have you come back to work and will you please call at our office as soon as you can this week. If you can't conveniently return to work this Monday, please let us know. The failure of the employee (Cyr) "to respond within the time allowed by the offer constituted an implied rejection," and the Board tolled his backpay "as of the last day on which he could have notified the Respondent of his willingness to return to work, i.e., the end of the business day on Friday, August 10." Id. at 604. Cf. Rental Uniform Service, 167 NLRB 190, 198 (Eleanor Howard) (1968). See also Belts Baking Company, supra, where the Board explains the basis for its holding 4 days' notice of reinstatement (with no alternative) insufficient in that and other cases by stating, "in each case the discriminatee would have been required to leave his present job while giving less than reasonable notice" (173 NLRB at 1018-19), a factor not present either here or in Southern Household supra. Mooney here, moreover, like employee Brown in Betts, never suggested the time factor as in any way responsible for refusal of the offer of reinstatement; and although employee Mummey there did testify that the time limitation was a reason for his failure to respond to the offer, he never so indicated prior to his testimony. The Board's apparent view that employee reliance on that ground was unnecessary in order to preserve it as a basis for decision was rejected by the courts both in Betts (428 F.2d 156, 158-159 (C.A. 10 1970)) and in N.L.R.B. v. Harrah's Club, 403 F.2d 865, 871 (C.A. 9, 1968) (Bruce Lovelady). Of course I am obliged, to follow the Board rather than the courts and so do not rely on this specific point21 for my conclusion that Respondent's letter of March 10, even on Mooney's version, was a valid offer of reinstatement which he rejected by failing to communicate with Respondent on March 13 or to report for work on March 14. I accordingly find that Mooney's right to backpay terminated at the close of business March 13, 1972. 3. Computation of amount due As noted above, Respondent admits that Mooney is entitled to $527.62 for the fourth quarter of 1971, in accordance with General Counsel's claim, and that he is further entitled to $668.81 for the first quarter of 1972 through March 13, such latter sum representing 297.25 hours at $2.25.22 I find that the hourly rate to which Mooney is entitled after 1971 is $2.55, as urged by General Counsel, and that the correct number of hours is 297.675,23 20 The Board of course reached the same result as to another employee who did not receive the letter until April 9. 21 1 deem it my duty, nevertheless, to note a parallel between this situation and that of an employer who, having a valid basis for discharging an employee, in fact discharges him in whole or in part for a discriminatory reason. If, as the Board properly holds, such a discharge breaches the employer's duty not to discriminate, it would seem that an employee violates his duty not to refuse an unconditional offer of reinstatement if his refusal does not rest at least in part on the shortness of time provided by the otherwise valid offer. 22 The 297.25 hours coincides with General Counsel's claim through March 10 plus 8.25 hours for March 13. 23 The minor discrepancy as to the hours for March 13 apparently stems from Respondent's rough approximation of one-fifth of 43-3/8 hours (Continued,' 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thus yielding $759.07 for the first quarter of 1972, with the grand total due at $1,286.69. It should be observed at the outset that Respondent's $2.25 position is completely untenable in light of Wright's admission that Mooney would have received an increase on December 30, 1971. Even at his 5-percent figure Mooney would be entitled to $2.3625. However, the evidence does not support Wright's attempted distinction of Mooney from the other production employees who were raised to $2.55 on December 30, nor does it in any event support his position that Mooney's raise would have been limited to 5 percent. Based on wage rates in relation to length of employment, Mooney, as of the time of his layoff, appears to have been at least the equal of employees who thereafter received the raise to $2.55. Hired at $2, he had been raised to $2.25 only halfway through his 90-day probationary period, an increase that defies explanation on any basis other than exceptional ability in light of Wright's testimony recited above. Lynce, who had been hired at $2.20 a month after Mooney, received no increase until December 30, 4 months after his hire. Davis was hired almost 2 months before Mooney but stayed at his $2.25 starting rate until the December 30 raise. Accordingly, and since Palmer, who had been hired at $2.50 on October 20, by which time Respondent had ceased hiring at any lesser rate, was raised to $2.55 in December, only 70 days after his hire, it would seem that Mooney would also have received the same rate. Wright's testimony to the contrary rests on the report he claims to have received from the , operations manager. Not only did the latter not appear to testify and support this hearsay statement, but Wright's testimony in this connec- tion seems contrived. According to him, the report was that Mooney lacked the requisite ability "at that time," but nowhere is "that time" identified . There seems no occasion for any such report to have been made in December, a month after Mooney's layoff. Nor, based on Wright's testimony as to when he "receive[d ] reports concerning the abilities of the people in the plant," was there any occasion for a report at any time after the expiration of Mooney's probationary period a month before his layoff. And if the report came when his probationary period expired, then he claimed in the specification for the week ending March 17. The exact figure is 8.675 hours rather than 8.25. 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, had 2 months to "progress" by December instead of the I month mentioned by Wright. Given the ability indicated by his early progress, Mooney should have had no difficulty in achieving the necessary competence had he indeed lacked it at whatever time Wright's testimony related to. Wright also contradicted himself when, upon a request by the General Counsel for company records to substanti- ate Wright's testimony that Palmer, Lynce, and Davis had "stepped" up from the "job position" of general laborer "to the classification of batch maker," Wright admitted that it was not a change in job position but solely in function, only to answer a moment later that the men would have been told when they received the increase that "their position was batch maker." And although he testified that "[e ]veryone would have called them a batch maker" and that they would so have regarded themselves, neither Palmer nor Davis did so when they testified at the unfair labor practice hearing, both, like Mooney, calling them- selves general laborers. Further undermining Wright's credibility was his futile attempt to deny the fact that no employee was hired after September 1971 at an hourly rate below $2.50. In light of this fact, as well as the fact that no production employee on the payroll as of the end of 1971 earned less than $2.55, I find it impossible to credit Wright's testimony that Mooney's raise in December would have been limited to 5 percent. I find, on the contrary, on the basis of all of the foregoing, that Mooney would have received a raise to $2.55 an hour on December 30, 1971, had he not suffered the discrimination found. Upon the foregoing, I hereby issue the following recommended: ORDER 24 Respondent, its officers, agents, successors and assigns, shall pay to Michael Mooney the sum of $1286.69 plus interest accrued to the date of payment in accordance with the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), less deductions for applicable taxes. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.